How to wield family law's 'big stick': the motion for contempt

By AdvocateDaily.com Staff

Parents whose children are being withheld from them must first lay a solid foundation of evidence before using the “big stick” of family law — a motion for contempt, Toronto family lawyer Brian Ludmer tells AdvocateDaily.com.

Ludmer, principal of LudmerLaw, says the extreme nature of the remedies available means courts tend to proceed with caution when it comes to motions for contempt. For example, although cases are rare, he explains that it is possible for a parent to be jailed following a finding of contempt.

“Judges will bend over backwards to make sure everything has been done for the parent because of the potential penalties, even though it’s almost never done,” he says. “In my opinion, the threat of incarceration should be used more often in denial of access cases, especially when you consider how harmful it can be to deny a child contact with one of their parents because of the actions of the other.”

As a result, Ludmer says family law litigants would be well advised to exhaust a number of non-legal avenues when it appears their access is being curtailed, before turning to the courts.

“You can’t just say, 'The kids aren’t here, I’m going to court.' You must do everything you can as the receiving parent to assist the transferring parent in actually getting them to you,” he explains.

“First of all, you need to try and get as much information as possible from the other side,” Ludmer says, noting that it’s unlikely one parent will come clean to another about preventing the children from seeing them.

“If you’re not stonewalled, then generally the justification for withholding the children will be given in a vague, non-descriptive way, such as a complaint that the child finds the other parent mean or abusive,” he says.

Ludmer says the receiving parent should take the initiative by suggesting family therapy or introducing the idea of a parenting co-ordinator who can mediate between the parties. Even if they don’t result in increasing parent-child contact, Ludmer says outside professionals will often produce reports on the family situation.

“You’re looking for solutions, but also building a body of evidence that can be used in court if needed,” he says.

“You can also draw on influencers of the withholding parent, such as their family and friends. Try to be creative,” Ludmer adds.

If none of these efforts is fruitful, he says it’s time to go to court. If the parties already have a case ongoing, Ludmer says all that needs to be done is to bring a compliance motion within it.

“Be careful to ask for additional relief beyond the order for enforcement of an already existing order, such as makeup time, the imposition of therapy, or costs. There are all kinds of remedies you can ask for,” he says.

Things are slightly more complicated if the withheld access is a breach of a final or consent order and the parties have no active case before the courts. However, Ludmer says a new case can simply be commenced by bringing a motion for contempt.

“You’re not asking immediately for a finding of contempt. Within that new proceeding you can bring your compliance motion but the big stick of contempt hangs over it,” he says. “If things don’t settle down, then you may have to use it.

"Once a finding of contempt is made, it’s very difficult to shake for the rest of the case," he adds. "It will influence all future family litigation between the parties.”

Although it’s a civil matter, applicants seeking a finding of contempt against another party must prove their case beyond reasonable doubt, due to the seriousness of the potential penalties.

Ludmer says the seriousness of the allegation also imposes some practical challenges for those bringing motions for contempt.

“There are technical rules in terms of the clarity of the notice and how it is given,” he says. “But if you’re cognizant of all the strict rules, you can push through all the technical defences a parent may put up.”

The hearing then generally proceeds in two parts: first, on whether the respondent should be found in contempt, and if so, a second to decide the appropriate penalty. Normally there is a gap between the two stages, to give the accused a chance to purge their contempt, Ludmer says.

He says many offending parents do not appreciate the size of their responsibility to ensure a child adheres to a court-ordered parenting schedule.

Ludmer says he defines the four major tools of parenting as: guidance, boundaries, incentives and consequences. In his view, breaching a court order is a boundary issue, suggesting that parents say: “I don’t care what the reason was, there is nothing to discuss. You need to learn about compliance with laws, even ones you don’t agree with.

“Once a breach has been clearly established, the evidentiary burden shifts to the offending parent to show that their parenting was up to standard,” he explains. “If they want to argue that it was impossible to get the child to go, then they have to show that they did everything possible and demonstrate which privileges have been removed as a result, and what sanctions have been imposed, and that those each have been escalated over time in the face of alleged continued defiance on the part of the child."

“That’s what a proper defence to a motion for contempt would look like, but it’s rarely satisfied,” Ludmer adds.